Court strikes down Prop 8 on narrow equal protection grounds
by Brian Leubitz
It probably isn't the decision that we would like, but it is sure better than the alternative. In a narrow decision, Judge Reinhardt held Prop 8 unconstitutional as denying equal protection under the law. However, this decision does not issue a blanked declaration that marriage bans are inherently unconstitutional in their own right. You can read the full decision over the flip or at this link.
That being said, the 2-1 decision was mostly positive. Judge Walker's findings of fact, which you can read on a footnote on Page 18 of the decision, were not disputed. The standard for changing these findings of fact is substantially higher than for the legal conclusions, but the maintenance of those facts is nonetheless important and notable. And of course, there is the fact that the 9th Circuit ruled that Prop 8 was unconstitutional, which is pretty great. However, I am guessing that AFER and Boies/Olson would have preferred an answer on the broader question of legality of same-sex marriage bans. But that was not to be today:
Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. We need not and do not answer the broader question in this case.
And so, citizens of other states must wait in line for the time being. Metaphorically, I suppose, because the 9th Circuit also put a stay on the decision, so no marriages will proceed right away. But the Supreme Court can review this decision in any way they would like to. They could address that broader question if they so decide. Perhaps they'd prefer to rip the band-aid off in one grand gesture, or maybe we'll wait for that. The Supreme Court won't make its decision on whether to hear the case for a few months, so Court watchers will be left guessing.
All that being said, you can't help but smile when you realize that an appellate court sees the real injustice in this inequality. Check out page 37 and the subsequent pages for a rather heartfelt statement of the importance of marriage in our community.
The designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple designing to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not.
Furthmore, when Reinhardt gets to his conclusion, it is stark and simple:
Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.
Reinhardt ultimately wrote the opinion for an audience of 9. By limiting his opinion, it has a stronger chance of standing up, and possibly even inspiring Justice Kennedy to end marriage discrimination forever.
The 9th Circuit has just announced that they will be releasing their opinion in Perry v Brown, otherwise known as the Prop 8 case, tomorrow. The opinion will be posted on their website. Given that the 9th Circuit will likely be overwhelmed by traffic, we'll get links up to alternate sites as soon as we have them.
LGBT leaders will be gathering at the court in San Francisco tomorrow at 10AM for the decision, and then heading over to City Hall where clergy will be standing by to bless couples. (There will likely be a stay if Prop 8 is again ruled unconstitutional, so no real marriages.)
The team behind the lawsuit will, AFER, be llivestreaming their press conference with David Boies and Ted Olson.
The campaign to re-elect Assemblymember Betsy Butler to the California State Assembly today announced the support of Congresswoman Judy Chu and former Congresswoman Diane Watson.
Betsy currently is a board member of Equality California and previously served as President of the National Women's Political Caucus (LA Westside Chapter), and as the Director of Development for Consumer Attorneys of California. Assemblymember Butler also has served as an appointed member of the California Film Commission, where she worked to keep the film industry as a driver of the state's economy.
Mayors officially Announce "Mayors for Marriage" campaign
Last week I mentioned that Jerry Sanders and Antonio Villaraigosa had teamed up with other mayors across the nation to launch an effort to back marriage equality. Freedom to marry has now officially launched the video from that US Conference of Mayors meeting last week:
You can see the full list of mayors that signed up for the campaign include many California mayors, from some of our biggest cities, LA, SD, Oakland and SF and a whole of assortment of interesting names (Redondo Beach, Chico, and San Luis Obispo).
The two biggest cities not on the list are also headed by Democrats as well. San Jose Mayor Chuck Reed is opposed to marriage equality, though he didn't publicly endorse Prop 8. Sacramento's Kevin Johnson who publicly opposed Prop 8, also, at least at last check, was playing the Obama game of not supporting constitutional amendments but opposing marriage equality.
Republican Mayor continues fight for Marriage Equality
by Brian Leubitz
Jerry Sanders is really your textbook example case for why the LGBT community needs to come out. Sanders was going about his business as just another Republican in SoCal, opposed to marriage equality. Hardly a radical anti-gay politician or anything like that, but not somebody that you would call an ally. That is of course, until his daughter came out as a lesbian.
The change wasn't overnight, but today, Sanders is now one of the most prominent voices for marriage equality. He testified at the Prop 8 trial, a day I happened to attend, and it was quite moving. If those tapes are released, his testimony will really be worth a watch. And today Freedom to Marry announced that Mayor Sanders will be leading a new campaign, creatively called "Mayors for Freedom to Marry."
Sanders hasn't suddenly become a progressive, but he has put himself in the shoes of somebody being discriminated against. He can see that his daughter was hurt by Prop 8, and has done something about it. I wouldn't vote for him for most offices, but I do think he should be commended for doing what is best for his family, not for what is best for his ability to win some future Republican "primary" battle.
The committee is co-chaired by Mayor Villaraigosa of LA as well as Mayors Bloomberg (NYC) and Menino (Boston). Meanwhile, the numbers continue to drift towards equality and legislatures across the country are passing marriage bills. At some point in the very near future, this is not going to be an issue outside of the right-wing fringe.
My apologies for being away for a while. I've been traveling, and is often the case after traveling, I got sick. So, as I try to ward off this nasty head cold, here's some food for thought on the subject of marriage equality.
As you might remember, we were polling we'll on prop 8 several months before the election. Then the nasty (and untrue) ads about forcing your kids to get married to a gay, or something like that, started appearing. We had no coordinated response, and ultimately that became the story. But in the marriage debate, time is our friend. And as every year passes, the electorate becomes more favorable.
By a 2-to-1 margin, three out of five (60 percent)" decline-to-state "voters support allowing gay and lesbian couples to marry legally, with a resounding 44 percent who strongly support legal avenues to marriage. In contrast, less than a third (30 percent total oppose) oppose legalizing marriage for gay and lesbian couples and less than one out of ten is undecided.
In a July 2009 poll commissioned by Love Honor Cherish, Equality California, Courage Campaign and more than 30 other organizations to determine when to seek repeal of Prop 8, decline-to-state voters favored marriage by 49% with 18% undecided and 33% opposed.(LoveHonorCherish)
Now, to be clear, this is far from conclusive proof of anything. LHC has a ballot measure submitted in Sacramento, and is trying to rally support. However, as of yet, there hasn't been any institutional support for the measure while the legal case is outstanding. With that case expected to drag on for months/years, it seems unlikely that a consensus will be formed around the November 2012 date for a measure. No matter when it goes on, a ballot measure would be extremeley expensive. Now, that isn't to say that I don't support the concept, because I think we really need to win one at the ballot at some point to give the Supreme Court some courage.
And all the numbers are there, we can win in 2012. But from where we stand right now, we have a lot of work to do before we are ballot ready.
9th Circuit panel will hear arguments on releasing the videos and overturning Judge Walker's decision based on gay bias
by Brian Leubitz
UPDATE: KQED Public Radio intends to livestream audio of the hearing at www.kqednews.org and www.kqed.org/news/
In just a few hours, Olson and Boies will be back in action, this time on two motions. First, Plaintiffs' lead co-counsel Theodore B. Olson will present the oral argument advocating for the release of the trial tapes at 2:30pm PT. (Court release here) Plaintiffs' lead co-counsel David Boies will present the oral argument regarding Proponents' motion to vacate judgment at 3:30pm PT. I'm hoping to be on hand for those, but I expect competition for those seats to be a little tough. You can also check out the Prop 8 Trial Tracker for live coverage if I'm not able to make it.
If the appellate court does not block the video tape release, and there isn't an emergency Supreme Court intervention, expect the courts to release those tapes shortly.
The motion to vacate is that silly one about Judge Walker not being able to rule fairly on the issue because he is gay. Judge Ware dismissed it curtly, and as I have written on several occasions (including here and here), it should receive pretty short shrift. The Prop 8 team is essentially arguing that minorities can not rule on civil rights cases that remotely affect them. I'm wondering if they would have the temerity to argue that a female judge couldn't decide a gender case, or an African-American judge couldn't decide a racial discrimination case. It should be, and likely will be, rejected almost out of hand.
More updates on this later today.
2:45: I'm at the court now, where the Prop8ers are presenting their case regarding the video. There basic argument is that they are very injured, and that the code of civil procedure trumps the common law right to access materials from the trial.
Judge2: you had two witnesses? Didnt they go on tv?
In a general opinion, Court favors giving initiative proponents authority to defend measures
By Brian Leubitz
As I mentioned yesterday, today the California Supreme Court has ruled on the certified question from the 9th Circuit regarding standing. I'll get into more details in a bit, but here is the general ruling from the court:
In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state's interest in the initiative's validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
What does this mean? Well, it ends the easy way out of the case. Standing is a threshold question, that must be resolved before the judge or judges in the case get to the merits of the case. Standing is appealable, but a decision by a lower court in a case as controversial as this to duck the question would hardly give the US Supreme Court any motivation to enter the fray themselves. In this situation, the question of standing is really a state law question anyway. The California Supreme Court should really be the body deciding who represents the state.
In this situation, both the Governor and the Attorney General declined to defend Prop 8, as they both felt it was unconstitutional. The Proponents defended the measure in the trial court as intervenors, but the decision to appeal isn't one that can typically be done by intervenors. So, if they were allowed to appeal, they would have to be granted some special standing. This decision is not specific to Prop 8 at all, rather it just says that when California's elected officials refuse to defend a ballot measure in court, the Proponents of the measure are "authorized to assert the state's interest in the initiative's validity."
In other words, the 9th Circuit is now on the clock for their decision on the merits. This is not necessarily a bad thing. AFER has built up a strong legal team and they constructed a good record at the trial court. They have the money to proceed all the way to the Supreme Court on Perry v Brown, lord knows with all the fundraising AFER has been doing, they have the money. But hey, if you are Chad Griffin, the man behind AFER, why not ask for some more money, because, well, AFER is really, really good at that. In his reaction to the case that seems to have been pre-written, Griffin seems to be relishing the fight (and asking for more money.)
Our federal lawsuit for marriage equality is back on the fast track!
Now that the California Supreme Court has finally issued its advisory opinion that the Prop. 8 Proponents have standing to appeal, we can expect a speedy ruling from the Ninth Circuit Court of Appeals. We are on the cusp of achieving what we have been fighting for. For countless couples like our plaintiffs, Kris Perry & Sandy Steir and Paul Katami & Jeff Zarrillo, marriage equality cannot come quickly enough.
Help us win the freedom to marry for couples like Kris & Sandy and Paul & Jeff. Make a donation today so we can continue our fight for full federal marriage equality. (donation link)
Look, I know that it is in AFER's best interest to move forward for this case, but I think celebrating this decision looks kind of silly. There was much discussion of the possibility of marriages beginning again this year, but that doesn't seem all that likely at this point. The 9th Circuit now will rule on the merits of the case, and we'll wait longer for this case to proceed.
So, no quick way out. Now, given that this case has taken so long, one of the AFER arguments to bring the litigation over the objection of many LGBT organizations, that we cannot tolerate a measure like this for one day longer now looks rather stark. The question I have now is given that we're still looking at many more layers, could we have gotten it done at the ballot box? I suppose we won't know, as it won't be on the 2012 vote. I'm pretty sure we would have won, but it would have cost more. And the impact of a Sup. Ct. win on this case would have an impact for the entire nation.
But, we're still rolling the dice here, no matter what we do. So, let it ride!
California Supreme Court will rule on question from 9th Circuit regarding standing
by Brian Leubitz
A quick public service announcement here. A ruling from the California Supreme Court is due tomorrow on the question of standing for the Prop 8 proponents:
The California Supreme Court will decide Thursday whether to allow supporters of Proposition 8 to defend California's ban on same-sex marriage.
Based on the tenor of the justices' questions during arguments in September, it appeared likely the Supreme Court would permit Proposition 8's legal team to defend the voter-approved law, which would push the ongoing legal battle forward in a federal appeals court.
The Supreme Court is addressing the narrow question of whether Proposition 8 sponsors have a right to appeal a federal judge's ruling declaring the law unconstitutional when the governor and attorney general refuse to do so. The 9th U.S. Circuit Court of Appeals asked the state's high court to rule on that issue before addressing the central questions in the legal challenge to the same-sex marriage ban. (SJ Merc)
As a reminder, this question has nothing whatsoever to do with the merits of the case. And while I'm not that big of a fan of reading the tea leaves, the fact remains that the Court did seem sympathetic to the Proponent's standing claim. And while a denial of standing would seemingly end the case and allow Californians to marry, as Chad Griffin of AFER points out, we really can win either way.
Here's the great news: No matter what happens, we win. Either the Federal District Court ruling that declared Prop. 8 unconstitutional stands, or our case proceeds on its merits with the strong likelihood of reaching the U.S. Supreme Court. Because there is no reason to justify discrimination against gay and lesbian Americans, we are confident that the higher courts will affirm our District Court victory.
So, I guess we'll just wait a few more hours, or a few more months, or a few more years, but time is on our side. The clock is ticking towards full marriage equality.
California Leaders Lobby Congress to End Discriminatory Law
by Brian Leubitz
There are a few facts that should probably come up first here. DOMA is unconstitutional. It violates the full faith and credit clause in addition to equal protection and due process claims. And that will be decided at some point soon, as the case is now at the appellate court level. However, for the time being the law is on the books, and we need to eliminate it.
Sen. Feinstein has been pushing DOMA repeal this legislative session, and got the bill out of the Judiciary Committee on a party line vote last week. Now Governor Brown and several California Mayors are pressing Congressional leaders to repeal as well.
The 1996 Defense of Marriage Act "is a stain on our common values," Lee and 14 other mayors and governors from around the nation said in a letter to the Senate Judiciary Committee, which voted last week to repeal the law.
In a separate letter, Brown noted that 18,000 gay and lesbian couples were legally wed in California in the five months before November 2008, when voters reinstated the ban on same-sex marriage by passing Proposition 8. Those marriages remain valid despite a state Supreme Court ruling upholding Prop. 8, which is now being challenged in federal court.
"Californians in these marriages deserve to be treated the same by the federal government and other states as Californians in other legal marriages," Brown told the Senate committee. (SF Chronicle)
Other California signatories to the Mayoral letter were Mayors Villaraigosa of LA and Sanders of San Diego.
Well, not that they really have anything to do with each other, with the exception of the fact that Lynn Woolsey has supported marriage equality from way back in the day. Woolsey voted against DOMA in 1996, as did many California Democrats. In fact of the 67 House no votes on DOMA, my quick counting showed at least 16 Californians, or nearly double the percentage of Californians in the House.
No, the Prop 8 case is also up today. The Supreme Court will consider whether the proponents of Prop 8 have standing to appeal Judge Vaughn Walker's decision.
The California Supreme Court will hear arguments Tuesday on whether conservatives who sponsored Proposition 8 are entitled to appeal last year's federal ruling that overturned the 2008 same-sex marriage ban.
The court's ruling, due 90 days after argument, will determine whether all initiative sponsors in California are legally entitled to defend their measures in state court when the governor and the attorney general refuse. (LA Times)
To be sure, it is far from clear which way this decision will go. Prior case law, from my reading, seems to lean in the favor of no, they can't appeal and do not have standing. However, the issue is a little gray, and that's why the question was certified to the CA Supreme Court. Unfortunately, the Court did not choose to expedite the process, but we should have a decision before December or so.
However, you can also watch the argument live on CalChannel, either on your cable provider or online at calchannel.com. The hearing starts at 10AM.
In a ruling that will surprise exactly nobody, the Prop 8 legal team's hail mary pass fell incomplete nowhere near the closest receiver:
A federal judge on Tuesday refused to invalidate last year's ruling against Proposition 8, deciding the gay jurist who overturned the same-sex marriage ban had no obligation to step aside because of a possible conflict of interest.
The decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by retired Judge Vaughn R. Walker in place. Walker's decision remains on hold pending a separate appeal to the U.S. 9th Circuit Court of Appeals. (LA Times)
I suppose this means that we'll not need to probe the minds of every individual judge on every civil rights case to determine who is the most "unbiased." I'm thinking they could have hired Spock to mind meld with every judge upon confirmation.
I suppose I shouldn't be surprised by anything in the Prop 8 trial anymore, but to be honest, I really thought that the attorneys for the proponents were better than this. No, I'm not imputing any skills to Andy Pugno other than self-aggrandizement, but despite their backward ideals, some of the attorneys on the pro-8 team weren't all that bad. Sure, they were given a pretty bad case and told to make some lemonade out of rotten lemons, but the lemonade was only half as rancid as it could have been.
I was unable to make it to the courthouse like I had hoped to cover the hearings today, but thanks to both Arisha and Rick at P8TT and the good folks on the AFER twitter feed, I was able to keep pretty good tabs on the argument. In short, the proponents wanted to wipe out the first trial because Judge Walker was in a long-term same-sex relationship and "might want to get married." They also discussed the question of who controls the video tape from the trial. And as I was reading the information coming in minute by minute, on both the video and the motion to vacate, one idea came to mind:
Hail Mary.
Before the hearing today, if you asked most any attorney of note, bringing up the old "he's gay!" argument was something of a sign of discomfort with the way they put on the original case. Pugno and friends essentially acknowledged that perhaps they could have done it better.
If you look at it legally, they still have a lot of appellate options remaining. And much of the case boils down to "questions of law" to which appellate courts review de novo, that is they look at them completely fresh. Judge Walker's determinations are essentially given no deference there. However, Judge Walker also listed a slew of "findings of fact." These are not reviewed fresh, but are only overturned if they are "clearly erroneous." (I'll leave the question about whether those are really findings of fact for another day.)
So, if you take that his findings of fact are really that, then sure, you'd really, really want a new trial. But there are several very important questions of law that much of the case turns upon in Judge Walker's decision. Those are reviewed fresh, and Team Prop 8 doesn't seem to like their hand on that one.
So, they brought this motion to vacate, hoping to get a do-over for that rancid lemonade they made last year. Who knows what their rationale was, but it all stunk of desperation.
Judge Ware's questioning cut right to the heart of the issue. What is a judge really obligated to disclose, and what are they allowed to take upon themselves to determine their own bias (or lack thereof)? Judge Ware brought up a series of hypotheticals that really put the lie to the Prop 8 team's argument. I'll let you go back to the live-blogging this morning to catch those, but suffice it to say, Mr. Cooper was not in an enviable position.
Surely the Prop 8 attorneys thought this through enough to figure out that this wasn't going anywhere. After all, vacating that decision would have had profound impacts on cases going far beyond the issue of LGBT rights. It was, at best, a long shot. But perhaps a long shot with rewards that were worth the risk for them.
In theory, perception shouldn't really make a difference in a legal proceeding. That is extraneous, and shouldn't be taken into account by the jurists reviewing the case. And I have confidence in our judiciary that it won't be. But, I'm pretty sure if you were able to ask the participants in the Scopes Monkey Trial if perception matters, you would get a very different response. In cases of historical import, perception matters, and I can't imagine that today did anything for those who wish to hold back the arc of history as it wends its way toward justice.
Well, the rumors that Judge Vaughn Walker were out there for a long time, and he never really denied it. The Chronicle, among others, published that information during the trial, and it was basically an known fact. However, Judge Walker has now acknowledged that he has been in a long term relationship with a man, and that apparently is entirely different. He might, you know, be interested in marrying some day, and so the thought processes of the Prop 8 attorneys goes, he should have recused himself from the case. They've filed a motion saying just that and asking for a new trial.
Eight months later, Proposition 8's proponents and their attorneys have taken a new position. They filed a motion Monday seeking to vacate Chief U.S. District Judge Vaughn Walker's historic ruling, a move they said was prompted by the now-retired jurist's recent disclosure that he is in a long-term relationship with another man.
Lawyers for the ban's backers argue that the judge's relationship status, not his sexual orientation, gave him too much in common with the couples who successfully sued to overturn the ban in his court. The judge should have recused himself or at least revealed the relationship to avoid a real or perceived conflict of interest, the lawyers say.(Sac Bee (AP))
This is really rather incredible. First, they are essentially arguing that only those who are unaffected by civil rights cases can hear those cases. So...diversity, yeah, that's a waste of time. Our bench should just be white straight men (WSM) so that they can hear all the cases. Never mind that we all bring a perspective to our daily life, only WSMs are unbiased enough to hear civil rights cases. And really, we should be looking into some of those WSMs as well. Gender discrimination case? Well, that WSM has a daughter who might have been excluded, better eliminate him too. You know, maybe we should just go to a court judged entirely by people locked up in a room, so that they don't have any other interests. We can raise children from the age of 5 in a state of unattached freedom, so that they never care about anything, and then they can grow up to be our judges. How does that sound?
Of course, it is pretty hard to imagine that this will actually go anywhere:
Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said that without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, he found it difficult to imagine that the particulars of the judge's same-sex relationship provided gay marriage opponents with an avenue for reversing his ruling.
"It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn't want to be married," he said. "I don't see that as advancing their cause."(SacBee (AP))
In the end, Prop 8 isn't about stable relationships, or encouraging the reasonable public policy of rewarding that stability. No, it is a punitive measure against those that they don't like. It is simply homophobia, and it doesn't belong in California, and it doesn't belong in our nation.
UPDATE: I'm a big fan of the dean of UC-Irvine's nascent law school, Erwin Chemerinsky. He really knows how to get to the nub of an argument, and explain it to you in a very real way. Here is an example of that:
"I know of no instance in which a judge has been disqualified because of his or her race, religion, sexual orientation or gender," Chemerinsky told TIME. "This would mean that no African-American judge could have heard a challenge to segregation laws or no woman judge a challenge to a law discriminating based on sex. No court ever has suggested any such thing, nor will it. This is simply a personal attack on Judge Walker in an effort to embarrass him. As was said in another context long ago, Have they no shame?" (Time Magazine)
A while back, the Prop 8 plaintiffs asked the 9th Circuit to lift their stay that continued enforcement of that odious legislation. Given the situation at the time, with the changed facts of the lengthy California Supreme Court delay and the President's determination that DOMA was unconstitutional, you'd think that maybe now would be the time to act on the District Court's decision and let the marriages continue.
However, today they announced that they would not be doing that.
Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs' motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs' motion at this time. (h/t Poliglot)
I'm not sure I have any words to describe this, save one: heartless. Perhaps the Court should tell that directly to Ed and Derrence.
The bigger issue seems to be in the way that the Supreme Court has defined the standard for these types of stays. Traditionally, the party seeking the stay has to show not only a likelihood of prevailing on the merits but also that nobody will face undue prejudice due to the stay. Of course, as we know, same-sex couples are facing unnecessary and painful delays.
But the issue that I found most intriguing, and that the City and County of San Francisco focused on in their brief (PDF) was the question of jurisdiction. The 9th Circuit has already questioned whether the proponents of Prop 8 have standing to appeal, and the threshhold for a stay is fairly high. So, should there really be a stay?
As the Supreme Court has held, when jurisdiction is unsettled a stay of judgment cannot be maintained. Here, this Court's certification order makes plain that Proponents have not, to date, met their burden. The stay should be lifted unless and until Proponents establish that this Court has the power to hear their appeal. (SF Brief)
Well, today, the LA Times joined the act, calling for marriages to resume in a speedy manner.
Although the federal courts expedited their handling of the lawsuit challenging Proposition 8, the issues are far from resolved. And now that the California Supreme Court has been asked to weigh in, the case could be delayed for another year or more.
Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system. (LAT)
Today, US Attorney General Eric Holder and President Obama announced that they would no longer be defending the odious Defense of Marriage Act:
The Attorney General made the following statement today about the Department's course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:
In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.
Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.(US DOJ)
For now, DOMA has not been struck in the 9th District, so it technically still applies here, but for how long? With this non-defense pledge outstanding, we can expect DOMA to be challenged facially (on its merits) very soon in California.
Hidden within the statement is the important sentence that indicates the President and his team believe that rational basis scrutiny is simply not enough. This is a potential game changer for employment discrimination (either formalized as ENDA, or just a de facto enforcement of other non-discrimination provisions), housing discrimination, and other provisions. So, this is important for marriage, but it goes far beyond that.
Press release after the flip.
UPDATE: After the administration's announcement, Sen. Dianne Feinstein has announced a bill to repeal DOMA. More details pending ...
Yeah, you heard that right. September 2011. So, we'll be waiting for a while. Here's what the Court said:
The request, pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted. For the purposes of briefing and oral argument, defendant-intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com (collectively "Proponents") are deemed the petitioners in this court. (Cal. Rules of Court, rule 8.520(a)(6).) In order to facilitate expedited consideration and resolution of the issues presented, and to accommodate oral argument in this matter as early as September, 2011, the normal briefing schedule is shortened, pursuant to California Rules of Court, rule 8.68, as follows: The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4. A reply brief may be served and filed on or before Monday, April 18. Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011. Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011. The court does not contemplate any extension of the above deadlines. Votes: Cantil-Sakauye, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
We will likely have a decision by the end of the year on standing. If the Supreme Court rules that the proponents have standing, then we'll be talking about another few months. If they say there isn't standing, then in all likelihood Judge Walker's decision will stand for California.
I'll save you from another discussion of the general standing question, as there are many such blog posts around the internet, some of which I've written myself. Just google "Prop 8 standing" for more information, and you'll be flooded with information.
The Courage Campaign launched a campaign asking same-sex couples who are waiting to tell their stories. You can find more info about that here.
One final comment. The continued dragging on of this case means that real families are still denied equal rights. It is a tragedy and a travesty. I'm a political hack, but at some point, we need to win this one at the ballot.
It's been quiet for a while in the Prop 8 federal litigation, but today might bring some changes on that front. According to the LA Times (h/t Prop 8 Trial Tracker), the California Supreme Court will decide whether they will respond to the question that the 9th Circuit certified to them:
The California Supreme Court will decide Wednesday whether to plunge back into the legal battle over same-sex marriage.
The state high court, meeting in closed session, will review a request by the U.S. 9th Circuit Court of Appeals to determine whether Proposition 8's sponsors have legal authority to defend the ballot measure. (LAT)
The 9th Circuit asked the California Supreme Court a question of state law, basically whether the proponents of a ballot measure have any special standing to defend the measure they helped to pass. The question has always been somewhat murky, both at the state and federal levels. A response on this question could have some pretty far-ranging impacts beyond the Prop 8 litigation.
This is fairly consistent with numbers that we've seen in the past, but PPP has just released their own data showing a majority favoring full marriage equality.
-The tide is turning in support of gay marriage in California. 51% of voters in the state now think it should be legal while 40% think it should remain illegal. It was just a little over 2 years ago that the state passed Proposition 8 but these numbers are reflective of a general liberalization in the views of Americans toward same sex marriage. (PPP)
The numbers get even better when you pull out senior citizens at 53-38. It is only a matter of time before we have full marriage equality in California and, eventually, the nation.
Oh, and they also tested a retrospective on the 2003 recall, and guess what, Californians wish they hadn't done that. By a 42-32 margin, voters would have refrained from recalling Davis. Too bad we can't take back the past seven years and the havoc the Governator wrought.
In a ruling that will surprise exactly nobody, the Prop 8 legal team's hail mary pass fell incomplete nowhere near the closest receiver:
I suppose I shouldn't be surprised by anything in the Prop 8 trial anymore, but to be honest, I really thought that the attorneys for the proponents were better than this. No, I'm not imputing any skills to Andy Pugno other than self-aggrandizement, but despite their backward ideals, some of the attorneys on the pro-8 team weren't all that bad. Sure, they were given a pretty bad case and told to make some lemonade out of rotten lemons, but the lemonade was only half as rancid as it could have been.